Violation Of Sunday Laws At Charleston

For The Court Of Appeals

City Council Of Charleston,

vs.

S. A. Benjamin

This was a summary process to recover the penalty
imposed by the 2d section of an ordinance of the City Council of
Charleston, ratified 2d of May, 1801, entitled “an ordinance for the
better observance of the Lord’s day, commonly called Sunday, and for other
purposes therein mentioned.” See City Digest, p. 272. That section is in
the following words; See. 11: “No person or persons whatsoever, shall
publicly expose to sale, or sell in any shop, warehouse or otherwise, any
goods, wares or merchandise whatsoever, upon the Lord’s day, and every
person so offending, shall, for every such offence, be liable to be
fined, in any sum not exceeding twenty dollars.”

The process alleged, “That S. A. Benjamin, on the
21st day of December, in the year of our Lord, 1845, within the limits of
the City of Charleston, in the State aforesaid, and within the
jurisdiction of the said City Court of Charleston, in a shop on East Bay,
in the City of Charleston, owned and possessed by the said S. A. Benjamin,
did sell to W. C. Gatewood of Charleston, certain goods, wares, and
merchandise, to wit: one pair of gloves; and also that the said S.
A. Benjamin, did then and there expose to sale, certain goods, wares, and
merchandise, to wit: coats, pantaloons, gloves, and other articles of
clothing, by reason whereof, the said S. A. Benjamin violated the second
clause of an ordinance of the City Council of Charleston, ratified the 2d
day of May, Anno Domini one thousand eight hundred and one, entitled ‘an
ordinance for the better observance of the Lord’s day, commonly called
Sunday,’ and for other purposes therein mentioned, and forfeited under the
same, for the said offence, to the use of the said City Council of
Charleston, the sum of twenty dollars for each of the said offences,
making in all for the said two offences the sum of forty dollars, which
the said City Council of Charleston are entitled to recover.”

The defendant, who appeared by his counsel, Mr.
Phillips, admitted the fact of selling the pair of gloves as alleged in
the process, but denied the charge of any public exposure of his goods for
sale as set forth. On the part of the plaintiffs, (represented by Wm. D.
Porter, the City Attorney,) it was admitted that the defendant is an
Israelite, and that he keeps as such, the seventh day of the week, or
Jewish Sabbath. Upon this statement of facts, the case was argued to the
jury by the respective counsel, the defendant contending mainly, that the
City ordinance, in question, was contrary to, and in violation of the 8th
article of the Constitution of the State of South Carolina, and this
ordinance was therefore inoperative and void. That section of the
Constitution of the State of South Carolina, adopted in 1790, is in the
following words: (Art. VIII. § 1.) “The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall, for ever hereafter, be allowed within this State, to all mankind;
provided that the liberty of conscience thereby declared, shall not be so
construed as to excuse acts of licentiousness, or justify practices
inconsistent with the peace or safety of this State.”

It was insisted on the part of the defendant, that
the ordinance as to him was a direct interference with, and in violation
of, that free exercise and enjoyment of religious profession and worship,
which was guarantied by the Constitution of the State, without
discrimination or preference to all mankind; and that
keeping the Jewish Sabbath according to his religious faith, the civil
power could not, consistently, with this great fundamental law of
religious liberty, compel him to observe or keep the Christian Sunday
also. On the part of the plaintiff it was contended that, viewing the
ordinance in question as a mere police regulation, it was clearly within
the powers delegated to the City Council under the City charter, “to
secure peace and good order within the City,” and that in this point of
view it was entirely consistent with the liberty of conscience and
religious profession and worship, guarantied by the Constitution of the
State. The argument of the question involved in the case, and one of much
ability on both sides, covered a wide range, various authorities were
cited, and analogies suggested, which it is not necessary here to repeat
in detail, as the case seemed to be regarded equally by the counsel
employed, as one calling for the final and ultimate decision of the
highest appellate tribunal of the State.

Being of opinion that the ground taken by the
defendant was sustained by the correct interpretation of the Constitution
of the State, and the carrying out into practical effect, of its wise and
liberal provisions, in behalf of the entire freedom of religious faith and
worship, I charged the jury that in my opinion, the 2d sec. of the
ordinance of the City Council of 1801, “for the better observance of
Sunday, commonly called the Lord’s day,” was in regard to the present
defendant, in clear and palpable violation of the 8th art. of the
constitution of the State, and therefore invalid, inoperative, and void.
The jury under these instructions, found a verdict for the defendant, and
I received notice of an appeal on the part of the plaintiffs, a copy of
which is annexed. As the questions raised by counsel were peculiarly, if
not exclusively for the consideration and judgment of the Court, it may
be proper and due to the importance of the case, that I should give at
some length, but at the same time, with all the brevity possible, the
reasons upon which my opinion and judgment were founded. I may be allowed,
I trust, without impropriety and without wandering from the subject, to
premise, that no one entertains a more thorough conviction than myself
that the Christian Sunday, or Lord’s day should be kept in a becoming
manner; and according to my religious faith, that it is a day peculiarly
devoted and set apart to Christian worship, and upon which the ordinary
secular employments of men, or in the language of the Church, all
servile works, should be suspended. But I have great doubts how far,
and to what extent, the civil power of the State, under a
fundamental law, guaranteeing to all mankind the free exercise and
enjoyment of religious profession and worship, without discrimination or
preference, can prescribe, by a general law, binding upon all its
citizens, that under certain penalties, for the better observance, in a
religious sense, of any particular day, they shall intermit or abstain
from, any worldly calling, pursuit, labour, or employment innocent in
itself, and not coming within the terms or spirit of the exception laid
down in the constitution, and not falling within the legitimate sphere of
mere police regulations. Though it may not be necessary to the decision of
the precise question involved in this case, I should perhaps be wanting in
candour, if I hesitated to avow my opinion, that, with certain
exceptions which will be hereafter noticed, not falling within the
operation of the general principle, in a community where there is a
complete severance between Church and State, and where entire freedom of
religious faith and worship is guarantied to all its citizens alike,
without discrimination or preference, the observance of any particular
day, in a religious sense, is a matter of mere ecclesiastical or religious
discipline and authority, and in no way pertaining to the civil power or
legislative authority of the State.

By what authority, consistently with the entire
freedom of religious faith and worship, guarantied to all alike, of
whatever religious sect or community, whether Jew or Gentile, can the
civil power ordain, that on the day kept by Christians, as a holy day or
day of worship, peculiar to them, the Jew shall be made to keep in the
same way, or to some extent at least, the Christian holy day; although,
according to his religious faith, he is required to keep another and a
different day, as sacred to religion, and in conscientious obedience to
the command of the God he worships.

But it is said that the evident meaning and intention
of this article of the constitution, as applied to the Jew, is to be
considered as carried into full effect, while he is permitted to practise
his religion, and to worship God upon the Jewish Sabbath, according to his
faith, undisturbed and unquestioned by any; and that it is no violation of
its terms or spirit, if in addition to this immunity, he is required, in
common with all the citizens of the State, to pay respect to the Christian
Sunday, by abstaining from his worldly occupations. But the constitution
professes to give to all mankind an entire and perfect equality of freedom
in religious faith and worship, without discrimination or
preference. Is it no discrimination or preference, to select by the
civil law of the State, the day considered sacred in a religious sense by
the Christian, and to compel the Jew to unite externally, at least, in its
observance; to protect from possible disturbance those who worship on
that day, by requiring all others to abstain from every species of labour
and employment, while the Jewish Sabbath is protected by no similar
regulation?

In the view of the constitution, are not the Jewish
Sabbath and the Christian Sunday precisely equal, and those who worship
God upon one or the other day, entitled to a perfect equality of immunity
and privileges?

It is sometimes said that it is a poor rule which
will not work both ways, and applying the principle which seems to be
contained in this popular adage, to the question before us, it may well be
asked, whether in a corporation, having all the powers over the subject
possessed by the Legislature of the State, if the Jews should happen to
have the majority of the Municipal Council, they could, consistently with
the articles of the constitution referred to, require by law on the part
of the rest of the community, the same observance of the Jewish Sabbath,
which is now required of them in regard to the Christian Sunday?

It is apparent under this clause of the constitution,
that the right to enact such a law, may be as rightfully deduced in behalf
of the Jew as the Christian, and that if the Jew has no right to complain
of the existing law as in violation of his religious liberty, the
Christian in the case supposed, would have no other or further ground of
objection. In truth, this great and fundamental provision of the
constitution appears, to furnish ample security, and perhaps the only one,
against undue encroachments upon religious liberty, by the action of the
legislative power of the State, amidst all the fluctuations of party; and
to place at all times, and for ever, freedom of conscience beyond the
reach of any dominant or preponderating influence, which numbers may at
any time give to a particular religious sect, or to any prevailing creed
of the day.

The ordinance in question seems to have been borrowed
from a very early statute, enacted as far back as the year 1712, when
South Carolina was a British Province, and when the good people of that
day were required under penalty to attend their Parish Church on Sunday,
and to remain there devoutly during divine service, and were forbid from
all travelling by land or water, except to and from church, or to pay a
visit of charity. The second section of the ordinance is a copy in so many
words of the third section of the act referred to, with one exception. See
Pub. Laws, p. 19. That section of the act, as will be perceived, only
forbids the public exposure of goods for sale, whereas under the terms
employed in the 2d section of the ordinance, a private sale of any article
of merchandise would seem to be included in the inhibition. It will not be
contended but that the greater portion, if not the whole of this antique
statute is obsolete; and if operative in any of its provisions down to the
glorious Revolution which resulted in the independence of the State, and
the establishment of civil and religious liberty upon a basis of
imperishable and equal justice, the clause of the constitution to which we
have referred must be considered as having entirely superseded and
repealed it.

Shall the ordinance of the City of Charleston, passed
in 1801, so soon after the adoption of the constitution of the State in
1790, be permitted to revive and keep alive in any of its features, the
inequality and injustice, the violation of religious liberty, inflicted by
the act of 1712? But it is said that the ordinance may be regarded as a
mere police regulation, calculated to promote and preserve the peace and
good order of the city, and that in this point of view, without regard to
any religious faith, and as having no connexion with religion, it is
clearly within the competency of the City Council, and is binding without
distinction upon all citizens equally and alike. Although with regard to
this defendant, it seems to me impossible to consider the question
presented in any other light, than as one affecting the freedom of
religious faith and worship, and that the defendant cannot be deprived of
the freedom which in this respect, the constitution of the State intended
to afford him: it does not follow that all the laws of the State or the
ordinances of Charleston, passed in virtue of the powers delegated to it,
which regard in some respect the observance of Sunday, must be necessarily
considered as inoperative, or as affected by this constitutional
provision. For while it may be held that, consistently with this provision
of the constitution, no law of the State or of any subordinate
corporation, can rightfully require the conscientious Israelite to keep
the Christian Sunday, by abstaining on that day from an occupation honest,
and in itself innocent and wholesome to society, or even that it does not
pertain to the civil power of the State, to compel the religious
observance of any particular day, by abstaining from labour, or in any
other way: there may be many regulations and enactments by the civil
power, founded upon the observation in fact by a large majority of its
citizens, of any particular day as a holy day.

So too, there is no doubt, that within certain limits
the City Council, for the better preservation of order and peace, and the
better security of the city, may prescribe certain regulations having
regard to Sunday, as an existing holy day in fact; but they cannot
on the score of being mere police regulations transcend the fundamental
and constitutional law of the land. Thus the ordinance of the city
referred to in the argument, on the subject of retailing liquor, on
Sunday, falls within the exercise of a legitimate power, that of granting
licenses to retail liquor, which is entirely and exclusively delegated to
the City Council. In regard to this matter, they have a right to grant or
refuse a license to retail liquor, to prescribe the terms upon which it
may be exercised, and if they may refuse or grant a license to retail
liquor for a longer or shorter time, they may clearly provide, that on
Sundays or any other particular days named, they shall not retail or sell
liquor. There are many acts of the State having relation to Sunday, which
fall within the exercise of legitimate authority. All the acts in relation
to slaves, come within this principle. Slavery is exclusively of statutory
creation and regulation; and the power of the master over the slave may be
modified or extended, as the Legislature may deem expedient. Thus the act
exempting the slave from labour on Sunday (necessary occasions of the
family excepted) is an eminently wholesome and humane provision and liable
to no constitutional or well-founded objection. So too the acts forbidding
the issuing or service of legal process on Sunday, are free of all
exception, both on the score of expediency and legality. The whole process
of the law is of mere legal creation, and its machinery may be regulated,
as to time and mode, by the law which creates it, without violating any
natural right.

There is also an act of the Legislature, and an
ordinance of the City Council, inflicting punishment upon those who
disturb any religious assembly or congregation engaged in worship; and as
the protection afforded, is not confined to Sunday or the Lord’s day, and
has no reference to any particular time, in effect, they carry out the
very provision of the Constitution, in giving equal security to all sects
and forms of religious worship without discrimination or preference.

In the examination of this question, I have not
thought it important or pertinent, to refer to the various English
Statutes, requiring the observance of Sunday, nor to the constructions put
upon them by the many decisions made by their Courts upon them. Where,
as in that country the Church and State are united, and not only a
particular religious faith, but a particular form of worship prescribed
by law, it is in vain to look for illustrations of that freedom of
religious faith and worship, which it was the glory of our ancestors to
obtain after a long and sanguinary struggle, and the enjoyment of which it
was evidently the design of the Constitution of South Carolina to secure
and perpetuate. Nor do I think other countries, holding a different
faith from that to which I have referred, where to more or less
extent, the same union or connexion between Church and State exists,
present models for our imitation, or for our instruction, unless it
be to avoid the errors of such a union. “Render to Caesar the things which
are Caesar’s, and to God the things which are God’s:” let the civil power
concern itself and predominate in its legitimate sphere; but let the
worship of God be the homage which He requires, and regulated only
by the authority He himself has established.

It would seem as far as forms of government or the
fundamental laws of society, can accomplish this most desirable end, and
raise an impenetrable barrier between the civil power on one hand and
religious freedom on the other, our own admirable Constitution furnishes
all the security that is possible. While this remains inviolate, we have
every thing to hope, and on this subject nothing to fear; but this great
barrier broken down or defaced, we may retain the name of freedom, but it
will be but a vain shadow, a delusion and a mockery, “stat nominis
umbra.”

I have not thought it necessary or proper to refer to
any ecclesiastical or historical authorities, by which the consecration of
Sunday, or the Lord’s day, to religious purposes, may be traced from the
earliest times to our own days. As far as the observance of it, and the
manner of its observance has been prescribed by the civil power, in
various countries, it is not important to notice, if, for the reasons
already assigned, and under the provision of our Constitution, it does not
pertain to that power in this State. If admitted to pertain to religion,
and form a part of that freedom of religious worship which is guarantied
by the constitution to all the citizens of the State, it is equally
unnecessary to trace the history of the day, in the decrees of councils,
or in the many regulations established from time to time in the various
parts of Christendom, by ecclesiastical authority.

In this point of view it presents a religious
question, in which as far as the civil power is concerned in this State,
as we have seen, all men are free to adopt and act upon their own
opinions. Amid the various and conflicting views which may be entertained
upon this subject, it may be at least said, that the defendant holds
himself bound to obey that solemn command, delivered by God to his
ancestors, more than 3000 years ago, amidst the thunders of Sinai,
“Remember that thou keep holy the Sabbath day; six days shalt thou labour
and shall do all thy works, but on the seventh day is the Sabbath of the
Lord thy God; thou shalt do no work on it, thou, nor thy son, nor thy
daughter, nor thy man­servant, nor thy maid-servant, nor thy beast, nor
the stranger that is within thy gates; for in six days the Lord made
heaven and earth, and the sea and all things that are in them, and rested
on the seventh day; therefore the Lord blessed the seventh day and
sanctified it.” This holy day thus set apart by God himself, kept
with a fidelity which has outlived the downfall of their once glorious
Temple, carried with their scattered people into every quarter of the
globe, still claims the veneration, and is consecrated by the worship of
the devout Israelite, in our own happy land. Persecuted for so many centuries, the sport of
tyranny and oppression, in so many climes, shall he not here at least be
at liberty to worship God in freedom, and find peace and security upon the
soil and under the Constitution of South Carolina?

Wm. Rice.

City Council,

vs.

Process. Nonsuit.

S. A. Benjamin

His Honour the Recorder, will please take notice,
that in pursuance of leave of the Court, a motion will be made at the next
sitting of the Court of Appeals, upon the following ground:

Because his Honour the Recorder ruled that the
section of the ordinance, upon which the suit was founded, was contrary to
the provision of the first section of article eight of the Constitution of
the State, and therefore void and no law.